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Supreme Court of the United States
University of Michigan Law School
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Come Back To The Boat, Justice Breyer!, Richard D. Friedman
Come Back To The Boat, Justice Breyer!, Richard D. Friedman
Michigan Law Review First Impressions
I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral …
Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer
Confrontation And The Re-Privatization Of Domestic Violence, Deborah Tuerkheimer
Michigan Law Review First Impressions
When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution of domestic violence predictably suffered as a result. But commentators at the time did not anticipate how the Court’s subsequent Confrontation Clause cases would utterly misconceive the nature of domestic violence, producing a flawed understanding of what constitutes a “testimonial” statement. Although the Court’s definition was especially problematic in the domestic violence context, its overly rigid approach finally became intolerable in Michigan v. Bryant, a 2011 case that did not involve domestic violence. In Bryant, the Court resurrected a public–private divide that …
The Crawford Debacle, George Fisher
The Crawford Debacle, George Fisher
Michigan Law Review First Impressions
First a toast—to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the tenth anniversary of their triumph: What they achieved in Crawford is every lawyer’s dream. By dint of sheer vision and lawyerly craft, they toppled what many saw as a flawed confrontation-law regime and put in its place one that promised greater justice. For that, much applause is due. Still there’s no denying their doctrine’s a muddle, if not as conceived, then as realized. Consider the count: Four justices almost agree on Crawford’s contours but patch over the issues that divide them. A fifth justice …
Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher
Crawford V. Washington: The Next Ten Years, Jeffrey L. Fisher
Michigan Law Review First Impressions
Imagine a world . . . in which the Supreme Court got it right the first time. That is, imagine that when the Supreme Court first incorporated the Confrontation Clause against the states, the Court did so by way of the testimonial approach. It’s not that hard to envision. In Douglas v. Alabama—issued in 1965, on the same day the Court ruled that the Confrontation Clause applies to the states—the Court held that a nontestifying witness’s custodial confession could not be introduced against the defendant because, while “not technically testimony,” the confession was “the equivalent in the jury’s mind …